Oregon Personal Injury Lawyer Blog

It is sad, tragic and depressing. A Medford, Oregon mom decided to drive her son and, we believe, 7 other young people. Four of the nine occupants did not wear seat belts. According to one witness, the car in front was driving slowly. When it turned off Upper Applegate Road, the mom hit the gas, up to 70 mph in a 45 mph zone. Because the people in the back were not belted, she goofed off by swerving to jostle them around. She lost control; the SUV left the road, and crashed.

Two people died: her son and Faith Vock, an 18 year old girl enjoying her summer with her uncle. Two others were hospitalized with serious injuries. The rest of the young people avoided major physical injuries but are traumatized for life.

Goofing off while driving often leads to irreversible and irreparable tragedy. We see it with teenage drivers, young drivers, and drivers impaired by alcohol or drugs. The Medford, Oregon tragedy shows that even middle-aged women can lose control when driving is used for amusement. How many times must it be said: "safety first."

The tragedy also points out how important seat belts are. The two young people that we lost were not belted. In the past, I have argued to the State Legislature that there ought to be a law requiring that drivers not transport people unless each one is in a seatbelt (HB 2536 - 2007). Safety advocates lost that argument to those who bemoan "the Nanny State." Maybe we should consider reviving that bill.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

Is it time to file a civil suit over the disappearance of Kyron Horman? This post discusses the possibilities.

We all remember that O.J. Simpson was acquitted in criminal court but held responsible in a civil case. The reason, of course, is a lower burden of proof. For criminal cases, the state must prove its allegations beyond a reasonable doubt; in civil court the "preponderance of the evidence" is enough.

Typically, I advise crime victims hold off on any civil lawsuit until the criminal prosecution concludes. However, in this situation, the issue is not monetary compensation; it is discovering the truth.

Who could sue for what?

If we assume that Kyron is alive, then a conservator or guardian ad litem (definitions here) must be appointed to assert any claims for Kyron. The conservator or guardian for litigation does not need to be the father, Kaine, and, probably should not be the father. Kyron could assert claim for negligence against his stepmother if there is evidence to show that she failed to act as a reasonable parent on the day Kyron disappeared, and her actions caused him to disappear.

If, more likely that not, Kyron has died, then the court could appoint a personal representative of his "estate," who could file a lawsuit against Terri Moulton Horman for wrongful death under Oregon law. Once again, the question is whether there is enough evidence to believe, in good faith, that Terri was responsible for Kyron's death. Police and the District Attorney's office would need to cooperate with the lawyer for Kyron's estate to determine whether sufficient evidence exists to file the lawsuit.

Benefits of a civil lawsuit?

In a civil lawsuit, the lawyer for the plaintiff (the person suing) could require Terri Moulton Horman to appear for a deposition, which is questioning under oath. Terri would have to show up. The court could order her to answer any non-incriminating questions. Terri could assert her 5th Amendment Right and refuse to answer any question that she reasonably believed could subject her to criminal prosecution.

Then what?

The judge could order Terri to answer incriminating questions or lose rights in the civil lawsuit up to and including losing the entire lawsuit and owing a lot of money. In Lefkowitz v Cunningham, the Supreme Court noted that if a State compels testimony by threatening to inflict "potent" penalties, then that violates her constitutional rights. Some courts have held that requiring a person to decide between losing a civil case and answering incriminating questions violates the 5th Amendment.

If the judge ordered Terri to answer incriminating questions under the penalty of losing by default, then a very interesting question arises: If Terri testified that she killed Kyron, would she then be immune from prosecution? At a minimum, it is likely that the prosecution could not use Terri's deposition testimony against her if it was compelled in violation of the 5th Amendment.

So, is it time for a civil suit? The answer depends on following:

Q. Will the DA share enough evidence to support a good faith belief that Terri either (a) was negligent in the way she dropped off Kyron or (b) was legally responsible for Kyron's death.

Q. Are there non-incriminating answers that could be extracted from Terri at a deposition that would advance the investigation?

If so, then a civil lawsuit might make sense. However, it unlikely that Terri will answer any useful questions at a deposition.

Jeff Merrick, Oregon Trial Attorney
PediatricLaw.com
503-665-4234

The Oregonian reported the settlement of a lawsuit against Gresham's Golden Star Restaurant & Lounge of at least $1.35 million dollars because it over-served alcohol to the drunk driver who killed two young girls. According to a witness, the bar served the drunken driver four to six drinks. The woman was not standing straight (swaying) and even flashed her bra to the entire bar.

The drunken woman drove on the wrong side of the road when she smashed into the two 21 year olds returning home from a birthday party. The grief-stricken parents (the Shaddixs and the Blancks) sued and had the courage to reject any settlement that included a confidentiality provision.

Despite the fact that everyone knows better, people still drive drunk, people still let others drive drunk, and people serve alcohol to visibly intoxicated people who they know will likely drive while intoxicated. The lesson from this case, and the Linda Cunningham case, is that people who make a living serving alcohol (and social hosts, too) are responsible for the damage they cause when they get people drunk.

For information on your legal rights when injured by a drunk driver, see this summary of Oregon Law.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

In a fascinating ruling that discusses Oregon law back to 1857, the Oregon Court of Appeals held that former TV personality Ken Ackerman may keep his $1.4 million dollar medical malpractice judgment. However, the court changed the trial court's ruling on who must pay it.

Mr. Ackerman had back surgery by a doctor employed by Oregon Health & Science University (OHSU) and OHSU Medical Group. The doctor punctured Mr. Ackerman's spinal cord, leaving him in constant pain, and with a loss of fine motor skills in his right hand. Also, he lost most sensitivity to hot and cold on his left side.

Because OHSU is considered a governmental entity, special laws apply that purport to limit its liability $200,000. Whether those laws work to limit liability depends on whether Mr. Ackerman could have brought the lawsuit before our 1857 constitution guaranteed to all of us a "remedy by due course of law." If a law made after 1857 tries to take away our rights, then it is unconstitutional.

Oregon's Court of Appeals said that because Mr. Ackerman could not have sued the State before 1857, and because OHSU is considered like the state, then the limit as against OHSU is okay.

The Court then looked at whether the OHSU Medical Group is like OHSU, and gets the benefit of the limitation. On the record before it, the court found that OHSU Medical Group was, again, an "instrumentality of the state," which could be limited. (One wonders if a different record based upon the activity at issue could lead to a different result.)

The back surgeon, however, was not considered protected under the State's umbrella. The laws that purported to protect him from additional liability were held to be unconstitutional.

Consequently, the Court of Appeals said Mr. Ackerman could collect $200,000 from OHSU, $200,000 from OHSU Medical Group, and $1 million from the back surgeon.

There are many more issues involved in this important case, and defendants will seek review by the Oregon Supreme Court. So, as they say in television, "stay tuned."

Jeff Merrick, Oregon Trial Attorney
503-665-4234

For years, Oregon children have been killed and have suffered Traumatic Brain Injury because they fell from windows. Second story windows are high enough, as I sadly learned while suing a landlord and Portland property management company. In the Portland area, alone, more than a dozen children go to hospitals for window fall injuries each year. Oregon Trauma Registry data indicate a total of close to 50 child window fall injuries per year.

The legal cases I had involving children falling from windows caused me to lead a legislative effort to pass a law requiring landlords to offer window guards to tenants with small children. That law did not pass, but a new Oregon building code is a step in the right direction.

The new regulation became effective February 1, 2010. It is Oregon Residential Specialty Code § R613.2. It applies to windows more than 72 inches above the ground below and offers two protections:

• First, windowsills must at least 24 inches above the floor.
• Second, the windows may not open more 4 inches unless the windows a provided with window guards that meet a certain national standard, called ASTM F 2090-08.

This is an important first step for a couple of reasons. First it acknowledges the serious and continuing problem of children falling from windows. Every year, when the weather gets hot, kids start dropping out of windows. You can count on it.

Second, the window guard requirement might cause stores to stock window guards. Right now, guards are very hard to find. You can see how window guards work at the Legacy Children's Hospital Safety Store, which is borrowing my own window guard displays. The knowledgeable and kind women who staff the store can help you order window guards and other safety devices.

I trust the word will get out to residential homebuilders: Make places safer to prevent tragedy!

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

In Oregon, if the employer pays for workers' compensation insurance, then the worker may not sue the employer when he or she is hurt on the job. This "exclusive remedy" provision does not apply if either (a) the employer does not have workers' compensation coverage or (b) someone else -- or something else -- was at fault.

For example, we sued a printing press manufacturer for making a dangerous machine when a worker suffered a severe arm injury. The manufacturer was not the employer, so it was not immune from suit under Oregon law. A more typical example is someone hurt in a car or truck accident while on the job. The worker can sue the other driver that caused the wreck.

But there are special issues to be aware of involving who may sue and who gets the money.

If the workers' compensation insurer pays benefits, then it has a right to get paid back out of any lawsuit proceeds. In fact, the insurance company can force you to decide whether to file a lawsuit. If you do not sue, then the insurance company can sue in your name.

There's a big difference to Oregon workers depending on whether the worker sues or the insurance company files the lawsuit.

If the insurance company sues in your name, then it controls the litigation. It decides when to settle. If the insurance company sues and settles the case, then it gets paid before the worker. The formula is that the insurer gets paid in full before the worker gets even one penny.

If the injured worker sues, then the formula for distributing the money is very different. First, the costs of the lawsuit are paid, including the attorney fees. Next, the worker receives 1/3 of the balance. Only then does the insurance company get paid back. So, if the worker sues, he or she jumps ahead of the insurance company. If there is still money left after paying back the insurer, the balance goes to the worker. The key Oregon law is ORS 656.576 to 656.596.

Another consideration is this. If the insurance company sues, will it really care whether the worker receives any money? Will it settle too cheaply, making sure it gets repaid and not worry about winning monetary compensation for your disability?

So the lesson? If you are seriously injured at work because of someone other than a coworker or something like a dangerous machine, then it is in your interest to sue and not let the insurance company file a lawsuit in your name.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you reliable advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Car accidents continue to kill more children than any other cause, according to a study published this week. The most recent data from Oregon are consistent with the new study results.

In this week's report, researchers studied deaths of children up to age 17 between 2000 and 2006 in San Diego County. Traffic accidents caused over 40% of the deaths, way more than the number two cause, asphyxia (22.7%). Penetrating trauma was the third leading cause of death at nearly 18%. (Fraga, et. al., Children at Danger, Injury Fatalities among Children in San Diego County, Eur J Epidemiol. 2010 Jan 19. [Epub ahead of print])

Oregon children also die, most often, because of traffic accidents. The good news from the Oregon data from 2000 - 2006 is rate of death from car accidents declined. We attribute that to better use of child safety seats, booster seats, and seat belts. We on the Safe Kids Legislative Committee spearheaded bill to update the law on booster seat usage in 2007, knowing that the data showed it would save lives AND reduces the severity of injury. Thanks to the leadership of Lake Oswego's Senator Devlin and Representative MacPherson, the bill got hearings and passed.

Oregon children can also thank committed safety professionals and volunteers who hold car seat clinics, educating parents on how to use safety seats and booster seats PROPERLY. In particular, Portland's Legacy Emanuel Children's Hospital,Tammy Franks and the Alliance for Community Traffic Safety have done a great job leading that effort. If you love a child, make sure the parents bring themselves and their seat to one of the clinics. Here's the schedule of upcoming clinics.

Jeff Merrick, Oregon Trial Attorney
503-665-4234